Saturday, June 30, 2007

Avoiding entangling alliances

Thomas Jefferson's first inaugural address called for "peace, commerce, and honest friendship with all nations, entangling alliances with none." During its inaugural term, CAAF's new five-judge court heeded that message.

I took out my stubby pencil today and crunched some numbers arising from the 35 cases that the five-judge court decided this term (with the realization that CAAF may or may not also decide Wilson, No. 06-0870/AR, this term). The population of cases is an extremely small data set, so be cautious in interpreting the numbers. But whatever its worth, here's what I found.

17 of the 35 cases were unanimous with no separate opinion filed. Every judge on the court wrote either three (CJE, JSS, JMR) or four (JJB, JCE) such opinions.

That leaves 18 cases in which at least one judge wrote separately. In 7 of those 18, one or two judges wrote separately concurring or concurring in the result. In the other 11 cases, one or two judges dissented.

Four cases were decided by a 3-2 vote (Shaw, Key, Thomas, Adcock). These four cases reveal no pattern -- every judge was in the majority in a 3-2 opinion at least once, and every judge was in the minority in a 3-2 opinion at least once. No two 3-2 opinions featured the same line-up. (JCE and JJB were both on the winning side of three of the four 3-2 opinions, CJE two of four, and JMR one of four.)

The most prolific separate opinion writing was CJE with eight, five of which were dissents. (CJE also joined in JMR's concurring/dissenting opinion in Key). JMR was next with five, three of which were dissents. (JMR also joined in JSS's Adcock dissent). Then JJB with four, two of which were dissents. (JJB also joined in JSS's separate concurrence in Erickson). Both JCE and JSS authored three separate opinions, though JCE joined CJE's Shaw dissent while JSS joined no other separate opinion. Only one of the three separate opinions JCE authored was a dissent, while two of JSS's separate opinions were dissents.

So during the five-judge court's first partial term, no voting block has emerged. Rather, each judge seems to be following his or her individual jurisprudential path -- and avoiding entangling alliances.

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